The question practitioners are often confronted with is whether it is the duty of the registrar of deeds to determine whether the date of transaction entered into by the executor is subsequent to the date on which the executor was appointed by the Master of the High Court.
When comparing the date of sale with the date of appointment of the executor it often occurs that the date of the transaction occurred prior to the date of appointment. Conveyancers and executors alike are of the opinion that, in some instances, an urgent sale can be concluded prior to the executor being appointed, and that the executor has the power to ratify the transaction after the appointment of the executor.
Another school of thought is of the opinion that this is not the responsibility of the registrar as the preparer of the power of attorney assumes responsibility that the executor has been appointed and is acting within the powers conferred upon him by law (see regulation 44A).
Section 13(1) of the Administration of Estates Act 66 of 1965, however, has a peremptory provision in this regard and provides that no person shall liquidate or distribute the estate of any deceased person, except under letters of executorship granted or signed and sealed under Act 66 of 1965, or under an endorsement made under section fifteen, or in pursuance of a direction by a Master. It is thus clear that no person can act as an executor before being granted letters of executorship by the Master (see Ex parte Ganga 1979 (1) SA 586 (N))
Given the provisions of section 13(1) and the fact that a registrar of deeds must register an indisputable title deed, it is abundantly clear that any transaction entered into by an executor or representative prior to his or her appointment is ab initio null and void and must be rejected by the deeds examiners concerned. The mere fact that the preparer has assumed responsibility for the fact that the executor is acting within the powers conferred him/her by law does not detract from the fact that a registrar of deeds must examine deeds and should it not comply with any law, he/she may reject same (see section 3(1)(b) of Act 47 of 1937).
Allen West
Property Law Consultant
HANNES GOUWS AND PARTNERS INC.
Attorneys, Notaries & Conveyancers
Tel: 012 321 1008
Cell 078 7655928
E-mail: allen@hannesgouws.co.za
Author of The Practitioners Guide to Conveyancing and Notarial Practice 3rd Edition
